Summary: Miss X complains the Council has delayed in moving her and her family to suitable temporary accommodation and delayed in dealing with disrepair and failed to deal with her complaints of anti social behaviour. The Council is at fault for delaying in providing Miss X and her family with suitable temporary accommodation. As a result Miss X has lived in unsuitable accommodation for five months and this injustice is ongoing. The Council has agreed to remedy this injustice by making a payment of £750 to her and £150 per month for every month she remains in unsuitable temporary accommodation. The Council is also at fault as it delayed in dealing with disrepair in Miss X’s property but this did not cause significant injustice to her. The Council failed to properly deal with Miss X’s reports of anti social behaviour which caused distress to her. The Council has agreed to remedy this injustice by making a payment of £150 to Miss X.

The complaint

1. Miss X complains that the Council has discriminated against her as it has:
1. Delayed in carrying out a review of the suitability of her temporary accommodation following the court’s decision to quash the Council’s decision that it was suitable.
2. Delayed in moving Miss X and her family to suitable temporary accommodation following the Council’s decision of 10 August 2022 that her accommodation was not suitable.
3. Failed to deal with disrepair in the property and wrongly said Miss X refused access to contractors to complete the repairs. Miss X also considers treatments by the pest controllers have damaged her and her family’s health.
4. Failed to investigate Miss X’s complaints about anti social behaviour by her neighbour.
2. As a result Miss X considers she and her family have lived with disrepair, in unsuitable accommodation and with anti social behaviour for longer than necessary which has affected their health. Miss X considers this shows the Council is discriminating against her.

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What I have and have not investigated

3. I have investigated events from January 2020. I have not investigated events before this time as it was open to Miss X to have made a complaint to the Ombudsman before 2022.

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The Ombudsman’s role and powers

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. I have investigated events from January 2020 in order to carry out an effective investigation into the matters complained of by Miss X. This would not be possible if the investigation was limited to the last 12 months.
6. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
7. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
8. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
9. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

10. I have:

• considered the complaint and the information provided by Miss X;
• discussed the issues with Miss X;
• made enquiries of the Council and considered the information provided;
• invited Miss X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

11. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need it has a duty to secure that accommodation is available for their occupation. This is called the main housing duty. (Housing Act 1996, section 193)
12. Temporary accommodation is accommodation provided to homeless applicants as part of a council’s main housing duty.
13. Councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of their household. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)
14. The duty to provide suitable accommodation is immediate, non-deferrable, and unqualified. Elkundi, R (On the Application Of) v Birmingham City Council [2022] EWCA Civ 601
15. Certain decisions councils make about homelessness carry a statutory right of review. The review decision then carries a right of appeal to court on a point of law. Homeless applicants have a right to review the suitability of temporary accommodation provided under the main homelessness duty. (Housing Act 1996, s202)
16. Councils must complete reviews of these decisions within eight weeks of receiving the review request. This period can be extended but only if the applicant agrees in writing. (Housing Act 1996, sections 202 and 204)

Anti social behaviour

17. Councils have a general duty to take action to tackle anti-social behaviour (ASB). But ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation.
18. The Council’s anti social behaviour policy says it will assess all reports of anti social behaviour to ensure the anti social behaviour team is the most appropriate team to deal with the complaint. It will attempt to resolve issues using local interventions in the first instance.

What happened

19. The following is a summary of the key facts relevant to my consideration of the complaint. It does not include everything that happened.
20. Miss X lives with her two adult children in temporary accommodation and has lived at the property since 2015. Miss X considers the property is unsuitable and is affecting her and her children’s health. She considers the property is in disrepair and she has suffered from infestations of pests.

Review of the suitability of temporary accommodation

21. In 2019 Miss X’s solicitor requested a review of the suitability of Miss X’s temporary accommodation due to disrepair in her property. In early 2020 the Council inspected Miss X’s property and decided Miss X’s property was suitable.
22. Following a challenge from Miss X’s solicitors, the Council reviewed the suitability of the accommodation in February 2021 and decided it was suitable. Miss X’s solicitor lodged an appeal against this decision with the court. In October 2021 the court quashed the Council’s decision. In November 2021 the Council notified Miss X’s solicitors that it would carry out a new review of the suitability of Miss X’s temporary accommodation. The Council has said Miss X’s solicitors requested an extension to submit more information for the review.
23. The Council reallocated Miss X’s review to a new officer in March 2022. Miss X’s solicitors requested more time to submit further information on several occasions between March and May 2022. The solicitors submitted the information on 30 May 2022. The Council then sought extensions of time from Miss X’s solicitors to make further enquiries regarding the disrepair in the property and to make enquiries of the Council’s medical advisor on Miss X’s medical needs.
24. The Council made its decision on the suitability of Miss X’s property in early August 2022. It decided the property was unsuitable due to Miss X’s medical condition as she had difficulty in using the stairs.
25. The Council has said it should have placed Miss X on its temporary accommodation transfer list but failed to do so. It has now placed Miss X on the transfer list. It considers this error did not result in Miss X missing out on an offer of suitable temporary accommodation. This is because it has focussed on moving applications who had higher priority than Miss X. The Council has not yet moved Miss X and her family to suitable temporary accommodation.

Disrepair

26. As stated above, the Council inspected Miss X’s property in early January 2020 in response to Miss X’s solicitors request for a review of the suitability of her property. The Council concluded some minor repairs were needed and there was evidence of pests. Miss X’s property had previously been treated for bedbugs but there was now evidence of mice. The Council’s records show it ordered repairs including the provision of a new carpet and pest control. Its records also show pest control had visited Miss X in early January to treat the mice infestation.
27. In March 2020, Miss X’s solicitors made a disrepair claim to the Council and provided the report of an inspection carried out by Miss X’s surveyor. The report found disrepair including draughts, missing tiles in the kitchen, mould in the bathroom and mice.
28. In July 2020 Miss X’s solicitors contacted the Council as it had not provided a schedule of works for Miss X’s property. The Council said it was taking instructions. Miss X’s solicitors chased the Council for the schedule of works several times between October 2020 and January 2021.
29. The Council carried out an inspection in April 2021 to identify the repairs needed. The officer identified repairs were required to the bathroom and kitchen. This included blocking up holes to prevent mice. The Council arranged a further visit from pest control.
30. The Council’s records show it arranged with Miss X’s solicitor for the contractor to visit her property to complete the works on a number of occasions between June 2021 and February 2022. Internal emails show the contractor notified the Council that they were unable to gain access to complete the works. Miss X has provided emails between her and her solicitor where she reports the contractor was late or had gained access on some occasions. The works were carried out in February 2022. Miss X considers the works have not been completed and the property is still infested with pests.

Anti social behaviour

31. In July 2020 Miss X reported anti social behaviour by her neighbour as she considered she was throwing waste into her garden. The Council’s records note an officer spoke to both Miss X and her neighbour to calm the situation. The officer advised Miss X to call back if the problem persisted.
32. Miss X contacted the Council again in August 2020 to complain about her neighbour harassing and racially abusing her and throwing waste into her garden. The Council’s records note the matter was monitored for persistence.
33. In October and December 2020 Miss X reported further instances of anti social behaviour from her neighbour. The Council’s records indicate no action was taken due to the COVID-19 pandemic restrictions.
34. Miss X again reported anti social behaviour by her neighbour in February 2021. The Council’s records note Miss X’s neighbour’s property was managed by another housing provider but there is no evidence of a referral to the provider.
35. Miss X contacted the Council again in May 2022 regarding the anti social behaviour. The Council’s records note an officer told her further clarity was needed before a formal investigation was opened. There is no record of any further action taken. Miss X’s neighbour then moved.

Complaint

36. In April 2022 Miss X made a complaint to the Council about her property including the disrepair and pests and anti social behaviour by her neighbour. She complained the property was exacerbating her and her children’s medical conditions and had a significant impact on her mental health. Miss X considered the Council was discriminating against her.
37. The Council responded at stage one of its two stage complaints procedure. The Council did not uphold Miss X’s complaint but said it would carry out a new inspection to identify any new works required. The Council also said Miss X’s complaint about anti social behaviour was still under consideration.
38. Miss X escalated her complaint to stage two of the Council’s complaints procedure. In this complaint she also raised that an officer wrongly said she had been rude to her and that the pesticides used in treating her property had damaged her and her children’s health. The Council did not uphold her complaint. It said it could not deal with her complaint about disrepair as that was subject to a legal disrepair claim. The Council also did not have a recording of the telephone call where Miss X said an officer was rude to her so it could not comment further.
39. In response to my enquiries the Council has confirmed Miss X’s solicitor did not make an application to the court about the disrepair in Miss X’s property.

Analysis

Review of the suitability of Miss X’s accommodation

40. I have not investigated whether there was any fault in how the Council made its decision on the suitability of Miss X’s accommodation in 2021. This is because Miss X has appealed to the county court against the decision so I do not have jurisdiction to consider this matter.
41. The Council’s review of the suitability of Miss X’s temporary accommodation should have taken no longer than eight weeks. The review took 10 months to complete. But on balance, I do not consider the Council to be at fault for the delay. Miss X’s solicitors sought a number of extensions to submit additional information which significantly contributed to the time taken. The Council took over two months to review the information provided by Miss X’s solicitors but it sought Miss X’s solicitor’s agreement for the additional time. I therefore do not consider the Council to be at fault.

Delay in moving Miss X to suitable temporary accommodation

42. The law says temporary accommodation must be suitable, the duty to provide suitable accommodation is immediate and cannot be deferred. The Council has acknowledged it failed to place Miss X on its temporary accommodation transfer list which is fault. We recognise the shortage of accommodation impacts on the Council’s ability to immediately provide suitable temporary accommodation. But it was not sufficient just to place Miss X on its transfer list. We also expect to see the Council taking further action to source suitable temporary accommodation both at an individual and strategic level.
43. The Council has not provided any evidence to show it was making efforts to seek suitable temporary accommodation for Miss X. I therefore consider it is at fault. But even if there was evidence to show the Council was making efforts to find suitable temporary accommodation for Miss X, the failure to comply with its legal duty to provide suitable temporary accommodation would amount to service failure which is fault.
44. We also expect the Council to consider whether there were steps it could take to reduce the impact of living in unsuitable temporary accommodation on Miss X, such as any temporary aids or adaptations to help her use the stairs. There is no evidence to show the Council has considered any such measures for Miss X. This is fault.
45. As a result, Miss X and her family have lived in unsuitable temporary accommodation for five months longer than they should have done. So, Miss X has difficulty using the stairs for longer than she should have done. The Council should remedy this injustice by making a payment of £150 per month to Miss X to acknowledge she has lived in unsuitable temporary accommodation between August 2022 and January 2023. It should make a payment of £150 per month to Miss X for every month she remains in unsuitable temporary accommodation after January 2023.

Disrepair

46. The evidence shows the Council delayed in taking action to deal with the disrepair in Miss X’s property between March 2020 and April 2021. The COVID-19 pandemic will have inevitably impacted on the Council’s ability to carry out the works. But there is no evidence to show the Council took any action to progress the matter between March 2020 and April 2021. Its communication with Miss X’s solicitors was poor as it failed to provide updates in response to Miss X’s solicitor’s chasing emails other than to say it was taking instructions rather than giving a reason for the delays.
47. There is a conflict in the evidence provided by the Council and Miss X as to whether she refused access for the contractors to complete the repairs. The contractor’s account is Miss X refused access. Miss X says she did not refuse access. But I do not consider further investigation will establish if the contractor’s or Miss X’s position is accurate. I therefore cannot know if the works would have been carried out sooner if the Council had not delayed in progressing the repairs.
48. There is evidence to show pest control visited Miss X’s property in June 2020 and in 2021. It is open to Miss X to request the Council provide further pest control visits if she is suffering further nuisance from pests.
49. In its stage one response the Council said it would carry out a further inspection of Miss X’s property to determine if there was any outstanding disrepair. There is no evidence to show the Council carried out this inspection. The Council’s stage two response refers to Miss X’s legal disrepair claim but the Council has confirmed that no application was made to the courts. So, I do not consider the disrepair claim was a good reason for the Council to not carry out the inspection as it had offered to do. The Council should now arrange with Miss X to carry out the inspection and any necessary repairs.

Anti social behaviour

50. The Council is at fault in how it dealt with Miss X’s complaints of anti social behaviour. The Council took action in response to Miss X’s initial reports by speaking to both Miss X and her neighbour. But there is no evidence to show it took action on Miss X’s reports from October 2020 onwards. The Council has noted it did not carry out site visits due to the COVID-19 pandemic. However, there is no evidence to show the Council took any action on Miss X’s reports to assess if it was a matter the anti social behaviour team could assist with, whether the matter could be dealt with without a visit or if the complaints should be referred to another team. There is no evidence to show the Council referred the matter to the housing provider as it undertook to do when Miss X contacted it in February 2021. The Council failed to take action following Miss X’s call of May 2022.
51. I cannot know if the Council would have taken action against Miss X’s neighbour even if it had acted on Miss X’s reports of anti social behaviour. But the failure to take any action caused distress to Miss X. The Council should remedy this injustice.

Other issues

52. Miss X has complained about an officer being rude to her and wrongly accusing her of being rude. The Council’s stage two complaint response says it does not have a recording of the call. I therefore have no means of establishing what happened during the call and it is not proportionate for me to investigate the matter further.
53. Miss X considers the Council has discriminated against her and her family. She also considers officers bullied her. I consider there is evidence of fault by the Council but there is no evidence to show this was caused by discrimination. There is also no evidence to show officers were bullying Miss X and her family.
54. Miss X has also said the treatments carried out by the pest control company have affected her and her children’s health. It is not the role of the Ombudsman to determine if the treatments have affected Miss X and her family’s health. This is a matter for the courts.

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Agreed action

55. The Council will:
1. send a written apology to Miss X for the distress caused to her by the delay in moving her and her family to suitable temporary accommodation and for failing to deal with her complaints of anti social behaviour.
2. make a payment of £750 to Miss X to acknowledge she and her family have lived in unsuitable temporary accommodation for five months. The Council should make a payment of £150 per month for every month Miss X remains in unsuitable temporary accommodation after January 2023.
3. make a payment of £150 to Miss X to acknowledge the distress caused by failing to deal with her complaints of anti social behaviour.
4. explore suitable options with Miss X to alleviate the difficulty she has in using the stairs and facilities in her property. This is to mitigate the effects of living in an unsuitable property.
5. carry out an inspection of Miss X’s property to assess whether there is any outstanding disrepair and carry out any necessary repairs.
6. reviews its procedures for dealing with complaints of anti social behaviour to ensure officers take appropriate action in accordance with the Council’s anti social behaviour policy and ensure it notifies complainants of the action to be taken. The Council should explain to the Ombudsman how it will improve its performance in this area.
56. The Council should take the action at a) to e) within one month of my final decision. The Council should take the action at f) within two months of my final decision.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. Fault causing injustice to Miss X.

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Investigator's decision on behalf of the Ombudsman